Saint Mary’s University

Bayombong, Nueva Vizcaya

School of Health & Natural Sciences

NURSING DEPARTMENT
Course No. NCM119 Lecture
Subject: Nursing Leadership and Management
Yr. Level: BSN 4
Contact Hours/Credit Units: 4hours/week(4units)_____________________________________________

Chapter 15
Legal Aspects and the Nurse
(Part 2)
I. Introduction:
As nurses begin their professional obligations, their legal responsibilities begin as well. Their
license to practice attests that they are qualified under the law to practice their profession.
Nurses are enjoined to be familiar with the Philippine Nursing Law, the standards of nursing
care, and other laws which affect nursing practice and their code of ethics.

Nurses need not be afraid of laws. These should be understood so that their scope and
limitations may be defined and identified. When these are clarified, performance of daily tasks is
assumed with more confidence and safety.

II. Learning Objectives:

Upon completion of this chapter, the students will have gained insights into:
1. Basic principles of law applicable to nursing practice.
2. The legal rules governing the registration and discipline of nursing.
3. The legal rights of patients.

III. Core Content of the Chapter:

CONSENT TO MEDICAL AND SURGICAL PROCEDURES

- it is defined as a “free and rational act that presupposes knowledge of the thing to which
consent is being given by a person who is legally capable to give consent.”
- The consent signed by the patient or authorized representative/legal guardian upon
admission is for the initial diagnosis and treatment.
- Subsequent treatments/operations require individual, informed consent. Before any
medical or surgical procedure can be performed on a patient, consent must be obtained
from the patient or his authorized representative who may be his parent or guardian.
- It is only in case of emergency where the consent requirement does not apply.

Nature of Consent. Consent is an authorization, by a patient or a person authorized by law to

give the consent on the patient’s behalf.

It is the nurse who actually secures the consent of the patient upon admission. This consent is
usually for diagnostic procedures and initial treatment deemed necessary by the medical staff.
To substantiate the patient’s consent, a written authorization is needed as proof against any
liability that may arise due to an illegal unlawful touching of a patient.
Informed Consent. Hayt and Hayt state that “it is established principle of law that every human
being of adult years and sound mind has the right to determine what shall be done with his own
body.” He may choose whether to be treated or not and to what extent, no matter how
necessary the medical care, or how imminent the danger to his life or health if he fails to submit
to treatment.

The essential elements of informed consent include

(1) the diagnosis and explanation of the condition;
(2) a fair explanation of the procedures to be done and used and the consequences;
(3) a description of alternative treatments or procedures;
(4) a description and benefits to be expected;
(5) material rights of any; and
(6) the prognosis, if the recommended care, procedure, is refused.

Proof of Consent. A written consent should be signed to show that the procedure is the one
consented to and that the person understands the nature of the procedure, the risks involved
and the possible consequences.

A signed special consent is necessary before any medical or surgical treatment is done such as
x-ray, special laboratory tests, blood transfusions, operations, cobalt therapy or chemotherapy,
and the like.

Who Must Consent. The patient is the one who gives the consent in his own behalf. However,
if he is incompetent (such as in the case of minors or the mentally ill) or physically unable and is
not an emergency case, consent must be taken from another who is authorized to give it in his
behalf.

Consent of Minors. Parents, or someone standing in their behalf give the consent to medical or
surgical treatment of a minor. Parental consent is not needed if the minor is married or
otherwise emancipated.

Consent of Mentally Ill. A mentally incompetent person cannot legally consent to medical or
surgical treatment. The consent must be taken from the parents or legal guardian.

Emergency Situation. When an emergency situation exists, no consent is necessary because

inaction as such time may cause greater injury. A mother, who is on the advanced stage of
labor, or a patient, who goes to the emergency room, gives an implied consent to an immediate
treatment or attendance. However, if time is available and an informed consent is possible, it is
best that this be taken for the protection of all the parties concerned.

Refusal to Consent. a patient who is mentally and legally competent (sane mind of legal age)
has the right to refuse the touching of his body or to submit to a medical or surgical procedure
no matter how necessary, nor how imminent the danger to his life or health if he fails to submit
to treatment.

As stated earlier a patient may refuse to consent due to inadequate information regarding the
procedure to be done. If after the explanation, he still refuses to sign the consent form he should
be made to fill out the release form to protect the hospital and/or agency and its personnel from
any liability that may result from his refusal. If he refuses to sign release form, this should be
noted in his chart. The competent person has a legal and ethical right to refuse treatment, and
this right is formally established.
Consent for Sterilization. Sterilization is the termination of the ability to produce offspring. The
husband and the wife must consent to the procedure if the operation is primarily to accomplish
sterilization. When the sterilization is medically necessary and the sterilization is an incidental
result such as in case of abruption placenta, ectopic pregnancies or ruptured uterus, the
patient’s consent alone is sufficient.

MEDICAL RECORDS
The value of medical records is both scientific and legal. As a record of illness and treatment, it
saves duplication in future cases and aides in prompt treatment. The record supplies rich
material for medical and nursing research. It serves as a legal protection for the hospital, doctor,
and nurse by reflecting the disease or condition of the patient and his management. Nurses
must remember the rule, “if it was not charted, it was not observed or done.”

Since patients have the right to confidentiality of these records, nurses are legally and ethically
bound to protect the patient’s chart from unauthorized persons. Permission has to be taken from
the hospital authorities for authorization to secure any information from the patient’s chart.

Nurses are responsible for safeguarding the patient’s record from loss or destruction or from
access by persons who are not legally authorized to read such.

CHARTING DONE BY NURSING STUDENTS

When a nurse or clinical instructor countersigns the charting of a nursing student, he/she attests
that he/she has personal knowledge of information and such is accurate and authentic. Anyone
who countersigns without verification commits herself to possible legal risk.

MEDICAL RECORDS IN LEGAL PROCEEDING

Medical records are usually used to give important evidence in legal proceedings such as police
investigations, determining cause of death, extent of injury incurred by the patient, among
others. It is usually the medical records librarian, by virtue of a subpoena duces tecum, who
testifies that the patient’s records are kept and protected from unauthorized handling and
change. Only complete accurate records are accepted in court.

LEGAL RISKS FOR DEFECTIVE EQUIPMENT

One important duty of the nurse is to make sure that the equipment used in procedures and
treatments is not defective. While the nurse may or may not be responsible for inspecting the
equipment for optimum functioning, she should see to it that all pieces of equipment are
regularly inspected, maintained and are functioning properly.
She should document the times she requested these to show that she was able to foresee the
improper functioning of equipment which might cause possible injury to patients. Such
equipment apparatus, x-ray tables, among others.

INTENTIONAL WRONGS
A nurse may be held liable for intentional wrongs. Intentional tortuous acts may arise in the
performance of her duties.

TORTS
A tort is a legal wrong, committed against a person or property independent of a contract which
renders the person who commits it liable for damages in a civil action. The person who has
been wronged seeks compensation for the injury or wrong he has suffered from the wrongdoer.
Examples of torts are:
1. Assault and Battery.
Assault is the imminent threat of harmful or offensive bodily contract. It is unjustifiable to touch
another person.
Ex.- forcing a client to take his medication or treatment.

Battery - physical harm through wilful touching, examined and treating of person without
consent.
Ex. – giving of injection without client’s consent.

2. False Imprisonment or Illegal Detention.

- occurs when the person is not allowed to leave a health care facility when there is no legal
justification to detain the client.

3. Invasion of Right to Privacy and Breach of Confidentiality.

- the right to privacy is the right to be left alone
- the right to be free from unwarranted publicity
- free from exposure to public view
- the right to live one’s life without having anyone’s name, picture or private affairs made public
against one’s will.
- divulge information from a patient’s chart to improper sources or unauthorized persons.

4. Defamation.
- character assassination
- there must be a third person who hears or read the comment before it can be considered
defamation

Slander is oral defamation of a person by speaking unprivileged or false words by which his
reputation is damaged.

Libel is defamation by written words, cartoons or such representation that cause a person
to be avoided, ridiculed or held in contempt or tend to injure him in his work.

CRIMES, MISDEMEANORS, AND FELONIES

Crime is defined as an act committed or omitted in violation of the law.

Criminal negligence
Reckless imprudence - person does an act from which damage results immediately.
Simple imprudence - did not use precaution and the damage was not immediate.

CLASSIFICATION
1. Manner of commission:
Deceit (dolo) with criminal intent
Fault (culpa) without; negligence

Conspiracy to commit a crime. A conspiracy to commit a crime exists when two or more
persons agree to commit a felony and decide to do it.

Persons who commit felonies are either principals, accomplices or accessories.

Principals
a. By direct participation - doer of the act
b. By inducement - directly force or induce others “influence others”
c. By cooperation

Accomplices
- “cooperates before the fact”- absent at the time crime is committed.

Accessories
- “cooperates after the fact”
profits, conceals/ destroys evidence.
- Assists in the escape of the principal are those who, having knowledge of the commission of
the crime, either as principals or accomplices, take part subsequent to its commission by
profiting.

Criminal Actions. Criminal actions deal with acts or offenses against public welfare. These
vary from minor offenses and misdemeanours to felonies.

A misdemeanour
is a general name for a criminal offense which does not in law amount to felony. Punishment is
usually a fine or imprisonment for a term of less than one year.

A felony is a public offense for which a convicted person is liable to be sentenced to death or to
be imprisoned in a penitentiary or prison. It is far more atrocious (brutal) in nature than
misdemeanour.

A felony is committed with deceit and fault. A deceit exists when the act is performed with
deliberate intent and there is fault when the wrongful acts result from imprudence, negligence,
or lack of skill or foresight.

Criminal Intent is the state of mind of a person at the time the criminal act is committed, that is,
he/she knows that an act is not lawful and still decided to do it anyway. However, when a
person accused of the crime offers evidence showing insanity, necessity, compulsion, accident,
or infancy the court will decide if he did not commit a criminal offense and will declare the
person not guilty.

Classes of Felonies
- Consummated when all the elements necessary for its execution and accomplishment are
present.
- Frustrated when the offender performs all the acts or execution which will produce the felony
as a consequence.
- Attempt to commit a felony when the offender commences the commission of the same
directly by overt (open or manifest) acts.
Consummated felonies, as well as those which are frustrated and attempted, are punishable.

CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY

J-E-M-A-A
1. Justifying circumstances
2. Exempting circumstances
3. Mitigating circumstances
4. Aggravating circumstances
5. Alternative circumstances

Justifying Circumstances. Self defence

A person may not incur criminal liability under the following circumstances:

When he/she acts in defence of his/her person or rights provided that-

a. There is an unlawful aggression on the part of the offended or injure party;
b. There is reasonable necessity for the means employed by the person defending
himself/herself to prevent such aggression; and
c. There is lack of sufficient provocation on the part of the person defending himself.
Anyone who acts in defence of the person or the rights of his/her spouse.
Any person who acts in the fulfilment of a duty.
Superior acting within the scope of practice

Exempting Circumstances.
There are certain circumstances under which the law exempts a person from criminal
liability for the commission of a crime.
a. An imbecile or an insane person, unless the latter has acted during a lucid
interval;
b. A person under nine years of age;
c. A person over nine years of age and under fifteen unless he/she acted with
discernment;
d. Any person who, while performing a lawful act with due care, causes an injury
which is merely an accident without fault or intention of causing it;
e. Any person who acts under the compulsion of an irresistible force;
f. Any person who acts under the impulse of an uncontrollable fear an equal or
greater injury; and
g. Any person who fails to perform an act required by law, when prevented by some
lawful or insuperable (obstacle that is impossible to overcome) cause.

Mitigating Circumstances
Following are some of the circumstances considered by law to be mitigating and, as such,
lessen the criminal liability of the offenders.
Under 18y/o or over 70 y/o
No intention to commit a grave wrong
Sufficient provocation/threat preceding the act
Immediate vindication of a grave offense
Voluntary surrender
Deaf & dumb/ with physical defect
Suffer from such illness that diminishes willpower

Aggravating Circumstances
are those attending the commission of a crime and which increase the criminal liability of the
offender or make his guilt more severe.
- Taking advantage of superior strength or position
- Price, reward, promise
- Use of fire, poison, explosion
- Calamities
- Fraud or disguise employed
- Evident Premeditation
 - Cruelty
- when the crime is committed in contempt of or with insult to the public authorities;
- when the act is committed with insult.
- committed with abuse or confidence or obvious ungratefulness;
- committed in a place of worship;
- committed on the occasion of earthquake, epidemic or other calamity or misfortune;
- committed in consideration of a price, reward, or promise;
- committed by means of fire, poison, explosion, standings of a vessel or international
damage thereto, derailment of a locomotive, or the use of any other artifice involving
great waste and ruin;
- when the act is committed with evident premeditation or after an unlawful entry and
cruelty.

Alternative Circumstances
May increase/decrease criminal liability depending on the nature and effects of the crime
- Relationship
- Intoxication
- Degree of instruction/education of the offender.

Moral Turpitude
- describes an offense or crime that is vile or an insult to morality. Such a crime typically
involves fraud, dishonesty, or anything that goes against the norms of society.

General categories of crimes and moral turpitude include:

(1) crimes against property,
(2) crimes against the government,
(3) crimes against people.

Murder
- is the unlawful killing of a human being with intent to kill.
- criminal abortion is a murder
- Euthanasia is also considered murder.

Homicide
Homicide is the killing of a human being.

Parricide
Killing of a person to whom you have a relationship
1. father
2. mother
3. brothers/sisters
4. ascendants
5. descendants
6. spouse

Abortion.
The expulsion of the product of conception before the age of viability.

Infanticide
Is killing of a child less than three (3) days of age.
Robbery
A crime against a person or property. The taking of personal property of another person from
him or in his presence.
An example would be when a nurse takes the patient’s cash or jewellery while the latter is
sleeping.

Controlled Substances
R.A. 6425 known as the Dangerous Drugs Act of 1972 covers the administration and regulation
of the manufacture, distribution, and dispensing of controlled drugs

Simulation of Birth, Substitution of One Child for Another, or Abandonment of a

Legitimate Child
- Pretend that a woman gave birth
- Substitution or exchanging of babies in the nursery
- Intentionally putting wrong information in the birth registration form

POINTS TO OBSERVE IN ORDER TO AVOID CRIMINAL LIABILITY

1. Be very familiar with the Philippine Nursing Law. It is your guide in practicing
nursing. It specifies the scope of nursing practice.

2. Be aware of laws that affect nursing practice. Ignorance of the law excuses no one.

3. At the start of employment, get a copy of your job description, the agency’s rules,
regulations and policies. Know your place in the organization structure so that you will
know your relationship with the various positions and departments to whom you are
responsible and the people you are responsible for.

4. Upgrade you skills and competence. Be sure that these are always on a high level.
Such will enable you not only to give the best nursing care but will also give you the
satisfaction of a job well done.

5. Accept only such responsibility that is written the scope of your employment and
your job description. Determine whether you are competent to do the job assigned to
you. If you are not, be honest in admitting so and try your best to learn it.

6. Do not delegate your responsibility to others. You are accountable for them. If the
person to whom you delegated the responsibility makes a mistake, you are legally liable.

7. Determine whether your subordinates are competent in the work you are
assigning them. This will show whether an in-service training is needed. Supervise
them well so that the danger of committing mistakes will be avoided.
 8. Develop good interpersonal relationship with your co-workers, whether they be
your supervisors, peers or subordinates. Good interpersonal relationship breed good
working relationships and many problems are easily detected, solved or eliminated.

9. Consult your superiors for problems that may be too big for you to handle. Just
like a fire, problems are best put out in the early stages before they become too big to
handle.

10. Verify orders that are not clear to you or those that seem to be erroneous.
Physician’s orders should be clearly written to avoid misunderstanding. It is better to be
safe than to be sorry.

11. The doctors should be informed about the patient’s conditions, the effects of
medications and treatments, or the patient’s lack of progress.

12. Keep in mind the value and necessity of keeping accurate and adequate records.
These will show the quality of care that you give.

13. Patients are entitled to an informed consent. The initial consent on admission is
usually of the initial diagnosis and laboratory work-up and treatment.
- Should an operation or a special procedure be needed or done, the patient and his
family are entitled to know what it is for and the consequences such actions on his
health. This will guide them in making an intelligent and shared decision. Another
consent is needed.

WILLS
- is a legal declaration of a person’s intentions upon death.
It is called a testamentary document because it takes effect after the death of its maker.
It is an act whereby a person is permitted with the formalities prescribed by law, to control to a
certain degree the deposition of his state, to take effect after his death.

Decedent
- is a person whose property is transmitted through succession whether or not he left a will.
- if he left a will, he is also called a testator. If the person making a will is a woman she is called
a testatrix.

Heir is a person called to succession either by the provision of a will or by operation of law.
A person who dies leaving a will is said to have died testate.
A person one who dies without a will is said to have died intestate.
Validation of a will in court is known as probate.
One who administers the provision of the will is known as the administrator.
A will which is written, dated and signed by the testator is called holographic will. It is subject
to no other form and may be made in or out of the Philippines and need not be witnessed. In the
probate of a holographic will, it is necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declares that the will and the signature are in
the handwriting of the testator.
An oral will is called a nuncupative will or nuncupation.

THE NURSE’S OBLIGATIONS IN THE EXECUTION OF A WILL

-The nurse should note the soundness of the patient’s mind (that he/she understood the act of
making a will)
- the patient is above 18 years of age.
- the will was signed by the testator
- that the witnesses were all present at the same time and signed the will in the presence of the
testator.

GIFTS
Another way of disposing property, aside from executing a will is by gifts. Four legal
requirements for a gift are:

1. The gift must consist of personal property;

2. There must be an intention to make the gifts;
3. There must be an indication of transfer of control over such property; and
4. There must be acceptance by the recipient.

Gifts made by a person because of anticipation of death or belief in approaching death are
called gifts causa mortis or donation causa mortis.

IV. Activity:
Recitation
Short Quiz
Long Quiz

V. Bibliography:
Professional Nursing in the Philippines
Lydia M. Venzon
Prepared by:

Mrs. Rosalie C. Carreon, RN, MSN